JOHNSON v. RAYBESTOS MANHATTAN INC (1987)

This is an action for personal injuries arising from asbestos exposure.   The trial court granted defendants' motion for summary judgment ¹ on the ground that the action was barred by the statute of limitations, specifically Code of Civil Procedure section 340, subdivision (3).   We hold that the governing statute is section 340.2,² under which the action does not appear to be barred.   Therefore we reverse the judgment.

I.

FACTS.

The documents before the trial court were somewhat ambiguous about plaintiff's employment history.   However it appears that he was exposed to asbestos on the job from at least 1959 until at least 1973.   Sometime between 1970 and 1977 he was disabled by back and other problems unrelated to asbestos exposure.   Beginning in 1973 he received disability benefits from the federal Department of Labor, apparently because of the back problems.   He also retired around that time.

In March 1979 a Department of Labor physician found that plaintiff was suffering from asbestosis.   Similar findings were made in August 1979 and March 1981.

In August 1979 plaintiff filed an application for further federal disability benefits in which he wrote that he was suffering from asbestosis.   He also wrote that he had first learned of the illness in November 1978.

The complaint was filed in October 1982.

II.

ANALYSIS.

Actions for injury or death “caused by the wrongful act or neglect of another” are usually subject to the one-year statute of limitations provided by section 340, subdivision (3).   The statute ordinarily begins to run either when the wrongful act occurs, or when the plaintiff has knowledge or notice of the facts constituting the claim.  (3 Witkin, Cal.Procedure (3d ed. 1985) Actions, §§ 351, 355, pp. 380–381, 383.)

As applied to asbestos-related injuries, however, these rules present a number of difficulties.   Because such injuries are progressive, they may be medically detectible before there has been any significant impairment or disability.   (See Nelson v. Flintkote Co. (1985) 172 Cal.App.3d 727, 735, 218 Cal.Rptr. 562.)   The elements of a cause of action may come into existence years before the injuries are fully developed.   Even if the statute does not begin to run until the plaintiff knows or should discover that he has suffered injuries, such knowledge may come from early diagnosis of a disease which is still “latent.”  (See Velasquez v. Fibreboard Paper Products Corp. (1979) 97 Cal.App.3d 881, 888, 159 Cal.Rptr. 113.)   In a sense the claim has not matured;  yet the clock is running against it.

To address these problems, the Legislature in 1979 enacted section 340.2, which provides in pertinent part:  “(a) In any civil action for injury or illness based upon exposure to asbestos, the time for the commencement of the action shall be the later of the following:  [¶] (1) Within one year after the date the plaintiff first suffered disability.  [¶] (2) Within one year after the date the plaintiff either knew, or through the exercise of reasonable diligence should have known, that such disability was caused or contributed to by such exposure.  [¶] (b) ‘Disability’ as used in subdivision (a) means the loss of time from work as a result of such exposure which precludes the performance of the employee's regular occupation․”

Under section 340.2 the limitations period does not commence until the asbestos-related injuries cause a permanent termination of the plaintiff's ability to do his or her job, which actually forces him or her off the job.   (See Puckett v. Johns-Manville Corp. (1985) 169 Cal.App.3d 1010, 1017, 215 Cal.Rptr. 726.)   The question before us is whether this rule applies to plaintiffs who discover an asbestos-related injury after they have retired or otherwise become unemployed from some cause other than asbestos exposure.   Such plaintiffs cannot be “disabled” within the terms of section 340.2 because, not being employed, they cannot suffer a “loss of time from work as a result of [asbestos] exposure.”   Under the terms of the statute, Mr. Johnson has never sustained a “disability” and the limitation period cannot have expired.

To avoid this result defendants argue that section 340.2 should not be literally applied.   They contend that it is inapplicable here and that claims such as plaintiff's continue to be governed by section 340, subdivision (3).   In this view, the statute of limitations began to run when plaintiff knew or should have discovered “that he was suffering from a disease that had caused or was likely to cause him injury for which relief could be sought at law.”  (Velasquez v. Fibreboard Paper Products Corp., supra, 97 Cal.App.3d 881, 888, 159 Cal.Rptr. 113.)

Defendants Nicolet and Western MacArthur argue further that if section 340.2 does apply the term “disability” should be interpreted to cover the present facts.   Nicolet suggests that an unemployed plaintiff should be deemed disabled as of the time the disease would have prevented performance of the job if the plaintiff had been working.   Western MacArthur impliedly adopts the same position and further suggests that the statutory definition of “disability” should not govern here because plaintiff admitted in his federal disability claim that he had an asbestos-related disability.

 The analysis of any statute must begin with its text.  (Guelfi v. Marin County Employees' Retirement Assn. (1983) 145 Cal.App.3d 297, 302, 193 Cal.Rptr. 343.)  “[I]f statutory language is ‘clear and unambiguous there is no need for construction, and courts should not indulge in it.’  (Solberg v. Superior Court (1977) 19 Cal.3d 182, 198 [137 Cal.Rptr. 460, 561 P.2d 1148].)  Unless defendants can demonstrate that the natural and customary import of the statute's language is either ‘repugnant to the general purview of the act,’ or for some other compelling reason, should be disregarded, this court must give effect to the statute's ‘plain meaning.’  (2A Sutherland, Statutory Construction (4th ed. 1973) § 46.01, p. 49.)”  (Tiernan v. Trustees of Cal. State University & Colleges (1982) 33 Cal.3d 211, 218–219, 188 Cal.Rptr. 115, 655 P.2d 317.)  “In the absence of compelling countervailing considerations, we must assume that the Legislature ‘knew what it was saying and meant what it said.’ ”  (Tracy v. Municipal Court (1978) 22 Cal.3d 760, 764, 150 Cal.Rptr. 785, 587 P.2d 227, quoting People v. Rodriguez (1963) 222 Cal.App.2d 221, 227, 34 Cal.Rptr. 907.)  “If the words are clear the inquiry ends there.”   (McCann v. Welden (1984) 153 Cal.App.3d 814, 820, 200 Cal.Rptr. 703.)

 Defendants have identified no ambiguity in section 340.2 and we detect none.   According to its terms the statute applies in “any civil action for injury or illness based upon exposure to asbestos.”   Since this language is clear, there is “no room for interpretation.”  (Tomlin v. Cole (1984) 152 Cal.App.3d 556, 559, 199 Cal.Rptr. 632.)   We must conclude that section 340.2 governs the claims before us.

For similar reasons we cannot indulge in a judicial redefinition of the term “disability.”  “ ‘When a statute prescribes the meaning to be given to particular terms used by it, that meaning is generally binding on the courts.’ ”  (Great Lakes Properties, Inc. v. City of El Segundo (1977) 19 Cal.3d 152, 156, 137 Cal.Rptr. 154, 561 P.2d 244, quoting People v. Western Air Lines, Inc. (1954) 42 Cal.2d 621, 638, 268 P.2d 723;  see Tomlin v. Cole, supra, 152 Cal.App.3d at p. 559, 199 Cal.Rptr. 632.)   Here, neither the language of the statute nor any of the legislative history brought to our attention suggests grounds for enlarging the Legislature's definition.   In fact, adoption of the rule suggested by defendants would effectively resurrect a test which the Legislature specifically rejected.   An early proposed version of the statute would have defined “disability” as “physical impairment and diminution of earning capacity to a substantial degree as a result of such exposure ․”  (Sen. Bill No. 564 (1979–1980 Reg. Sess.) § 1.)   The Legislature amended the bill to read as it presently does, with the statute beginning to run only after an actual “loss of time from work.”   The rule under the original bill would have been substantially the same as the one proposed here by defendants.   Even if an occasion were presented for judicial “interpretation,” we fail to see how we could adopt a standard which the Legislature deliberately abandoned.

Defendants assert that a literal application of section 340.2 will free unemployed asbestos plaintiffs from any defense of limitations.   Accepting this point for purposes of argument,³ we discern in it nothing so compelling as to justify disregarding the plain meaning of the statute.   The defense of limitations is not so sacrosanct that it may not be impaired by the Legislature.   Such statutes are rules not of logic but of necessity and convenience:  “They represent expedients, rather than principles․  Their shelter has never been regarded as what now is called a ‘fundamental’ right․  [T]he history of pleas of limitation shows them to be good only by legislative grace and to be subject to a relatively large degree of legislative control.  [Fn. omitted.]”  (Chase Securities Corp. v. Donaldson (1945) 325 U.S. 304, 314, 65 S.Ct. 1137, 1142, 89 L.Ed. 1628, quoted in Nelson v. Flintkote Co., supra, 172 Cal.App.3d 727, 734, 218 Cal.Rptr. 562.)   They constitute “obstacles to just claims and the courts may not indulge in a strained construction to apply these statutes to the facts of a particular case․”  (Nelson, supra, at p. 734, 218 Cal.Rptr. 562, quoting Steketee v. Lintz, Williams & Rothberg (1985) 38 Cal.3d 46, 56, 210 Cal.Rptr. 781, 694 P.2d 1153.)

Even if we accepted defendants' contention that literal application of section 340.2 is unduly favorable to unemployed plaintiffs, it would not follow that we should adopt a different rule which discriminates against them.   A judicially created double standard based on employment status would inject complications of benefit to no one.   What would be the operative moment for determining which rule applies?   If a plaintiff's employment status changed, would the applicable rule change?   Which rule would apply when a plaintiff is disabled from a non-asbestos cause, then recovers and returns to work, and then is disabled by an asbestos-related cause?   Does section 340 cease to govern and 340.2 take its place?   Does it matter whether a year elapses between those events?   What if asbestosis appears while the plaintiff is employed, but he is then forced out of work by something else before he is “disabled” by the asbestosis?

Even if it be conceded that section 340.2 produces anomalous results it is by no means clear that any other formula would achieve the Legislature's goals with fewer anomalies.   The dual rule offered by defendants would merely replace small anomalies with big ones.   In any event, it is not our task to judge the quality of the Legislature's thinking.   In Blakey v. Superior Court (1984) 153 Cal.App.3d 101, 200 Cal.Rptr. 52, Division Two of this court commented on the effect of section 340.2 on working but non-disabled plaintiffs:  “It may seem somewhat anomalous that the statute of limitations with respect to complainants who actually know that they have sustained injury or illness as a result of asbestos exposure never commences to run until the occurrence of ‘disability’ within the meaning of section 340.2, regardless of when knowledge of the injury or illness was acquired.   That is the effect, however, of the statutory scheme enacted by the Legislature.   If the Legislature believes that the law should be otherwise, it may change it by statutory amendment.   Until and unless that occurs, it is the function of this court to apply the statute as written.”  (Id., at p. 107, 200 Cal.Rptr. 52, emphasis in original.)

The judgment is reversed.   Costs to appellant.

FOOTNOTES

1.   The motion was filed by Eagle-Picher Industries, Inc.   The remaining defendants (Raymark Industries, Inc. (sued as Raybestos-Manhattan, Inc.), AC & S, Inc., Celotex Corporation, The Flintkote Company, Nicolet, Inc., Keene Corporation, Pittsburgh-Corning Corporation, and Western MacArthur Company) joined in the motion, apparently without objection.   We treat the motion as having been brought by all eight defendants.

2.   All statutory references are to the Code of Civil Procedure.

3.   Nothing in the record permits us to rule out the possibility that Mr. Johnson could become “disabled” within the meaning of section 340.2 by recovering from his present disability, returning to work, and suffering a new, asbestos-related disability.   The fact this may never occur does not make him “exempt” from the statute of limitations.   In precisely the same way, a claim subject to a “discovery” rule may never be “discovered.”   Indeed under section 340.2 an employed plaintiff may never be “disabled” so as to start the statute running.  (See, e.g., Puckett v. Johns-Manville, supra, 169 Cal.App.3d 1010, 1015, 215 Cal.Rptr. 726 [plaintiff working when suit filed].)  It is meaningless to say that such a plaintiff has been “freed” from the statute of limitations.

CHANNELL, Associate Justice.

ANDERSON, P.J., and POCHE, J., concur.